Excerpt: - - they also alleged that in the three shops in dispute they were also co-sharers to the extent of f and that the said shops were mortgaged by the ancestors as well as those of the plaintiffs to the ratlamwalas. p-7 which clearly proved that the three shops in dispute were first mortgagad by the suranas in favour of the firm of the plaintiffs family styled sanwat ram jagannath and that the later mortgaged them with ratlamwalas......suranas in favour of sanwat ram jagannath and that they were mortgaged by plaintiffs ancestors in favour of ratlamwalas and thereafter sub-mortgaged by the latter in favour of defendant 1. the plaintiffs were, therefore, entitled to redeem them. he also held that one of the nohras was mortgaged by chhagan lal and a moiety share in the other nohra by panna lal in favour of defendant 1 and, therefore, the plaintiffs were not entitled to redeem them too. holding that the plaintiffs had proved the mortgage of only half of the other nohra from their ancestors to defendant 1 for a bum of rs. 221 he gave a decree for redemption to the plaintiffs of this half share in nohra in payment of rs. 221 within six months.11. against judgment and the decree of the learned munsiff, the plaintiffs went in.....

Judgment:

1. This is a second appeal by the plaintiffs Kanhiya Lal and Prahlad against the appellate decree of the learned District Judge Bhilwara upholding the decree of the learned Town Munsiff Bhilwara dismissing the plaintiff's suit for redemption of two Nohras and three shops situated in the town of Bhilwara, Jamna Lal, defendant 1 was made the principal defendant and Chhagan Lal and Panna Lal were also made defendants 2 and 3. The defendants Ganesh Ram and Andi Ram were also made defendants 4 and 5 on the allegation that defendant 1 had given the possession of one of the shops in dispute to them. It would be convenient to give the pedigree given by the plaintiffs in their plaint before proceeding any further.

SANWAT RAM

|

Jagannath

__________________________________|____________________________

| | |

Kojodi Mal Janki Das Kishan Lal

_________|______________________ ____|_____________ |

| | | | Chhagan Lal

Shivkaran Barwakaran Ramkaran Panna Lal (Defendant 2)

| | (died Issueless) (Defendant 3)

Haridas Mohan Lal

_|_______________ (adopted son)

| | |

Hanhaiya Lal Mohan Lal Prahlad

(Plaintiff 1) (Adopted by (Plaintiff 2)

Barwakaran)

2. The plaintiffs originally brought their suit on the allegation that one of the Nohras in suit was usufructuarily mortgaged by the ancestors of the plaintiffs with the ancestors of defendant 1 about Samvat 1968 for a sum of Rs. 300, and three shops in suit were usufructuarily mortgaged in about Samvat 1919 with MessrsHans Raj Radhakishan of Ratlam (to be herein, after referred to as Ratlamwalas) by Shivkaran and Hari Dass for a sum of Rs 300. The said three shops came into the possession of defendant 1, Jamna Lal by a submortgage from Ratlamwalas. As regards the second Nohra in suit it was alleged that about Samvat 1963 itwas usufructuarily mortgaged with defendant 1 for a sum of Rs. 400 by Chhagan Lal and Panna Lal defendants 3 and 3. It was further alleged that the whole of the property in suit came into the possession of the plaintiffs' ancestors by way of possessory mortgage from certain Suranas who sold it to the plaintiff's father and grandfather in samvat 1968. Defendants 3 and 3 therefore have no right in these properties but they were allowed to mortgage the Nohra simply because they required money for their father's expenses.

3. Subsequently an application for amendment of the plaint was made on 19th September 1941 to the following effect:--(i) Kanhaiya Lal successor of Ratlamwalas to be added as defendant 6; (ii) The date of the mortgage deed by Suranas in favour of the plaintiff's ancestors to be given as Maghvadi 6, Samvat 1922 and the amount of mortgage money as RS. 957; (iii) The date of mortgage of three shops by the plaintiff's ancestors to Ratlamwalas to be given as Kartik Sudi 1, samvat 1911 and the amount of mortgage money as Rs. 1000. It would thus be seen by this amendment the three shops were alleged to have been mortgaged to Ratlamwalas on Kartik sudi 1, Samvat, 1947, instead of samvat 1942 as originally alleged and the amount of the mortgage money was Rs. 1000 instead of RS. 300; thus bringing the total amount of the mortgage money of all the property in dipute to RS. 1700 instead of Rs. 1000.

4. This amendment was allowed by the order dated 20th September 1944.

5. On 27th October 1944, the defendants 4 and 6 applied that their brother Rambilas be also made a party and consequently by an order dated the same day Rambilas was arrayed as defendant 7.

6. The defendants 4 and 5 in their written statement dated 1st November 1944 pleaded that they had nothing to do with the suit and that they had purchased two of the shops in suit for a sum of Rs. 1000 from defendant 1 out of which Rs. 500 had been paid as earnest money and the balance was still due. The sale-deed had not been executed but they had been put in posses-sion.

7. On 15th November 1914, defendant 1 filed his written statement alleging that all three shops were his own property and the allegation about their having been mortgaged by plaintiff's ancestor was not true. It was also alleged that only a moiety share in one of the Nohras in suit had been mortgaged by the plain, tiff 1's father and grand-father for a sum of RS. 321 to him (defendant 1) on Phalgun Sudi 15 Samwat 1968 and that a sum of Rs. 865-0 6 was spent by him on repairs of that portion.

The remaining half of the said Nobra was mortgaged with him by Fanna Lal Ram Karan for a sum of Rs. 321, on Mrigair sudi 3, samwat 1965. On that portion RS. 89-6-0 were spent as repairs during mortgage. It was also alleged that the other Nohra was mortgaged with him by Chagan Lal, defendant 3 for a sum of RS. 281 on Bhado vadi 3, Samvat 1971 and a sum of Rs. 126-13-6 was spent on its repairs. It was finally alleged that there was misjoinder of defendants and causes of action and in any case the plaintiffs alone had no right to bring the suit without making defendants 2 and 3 as co-plaintiffs as according to his own saying they were also members of the plaintiffs family and interested in the firm Sanwat Ram Jagannath.

8. Defendants 2 and 3 in their written statement pleaded that the plaintiffs had nothing to do with the property mortgaged by them to defendant 1 and had consequently no right to redeem it. They also alleged that in the three shops in dispute they were also co-sharers to the extent of f and that the said shops were mortgaged by the ancestors as well as those of the plaintiffs to the Ratlamwalas.

9. In proof of their assertion the plaintiffs in addition to the oral evidence filed inter alia an extract from their Nakal Bahi B, EX. P. 1 and an extract from the Nakal Bahi of Ratlamwalas EX. P. 7, an extract about the alleged mortgage by Suranas in favour of Sawant Ram Jagnnath dated Magh vadi 6, Samvat 1923, Ex. P-2 and Ex. P.3 purporting to be an unregistered sale deed dated chait sudi 9 Samvat 1968 executed by Suranas in favour of Firm Sanwat Ram Jagnnath. The bahi of Ratlamwalas from which the above extract EX. P-7 was taken waa produced by Ghhagan Lal, defendant 2 as a witness for the plaintiffs.

10. The learned Munsiff held that it was not proved that the three shops were mortgaged and afterwards sold by Suranas in favour of Sanwat Ram Jagannath and that they were mortgaged by plaintiffs ancestors in favour of Ratlamwalas and thereafter sub-mortgaged by the latter in favour of defendant 1. The plaintiffs were, therefore, entitled to redeem them. He also held that one of the Nohras was mortgaged by Chhagan Lal and a moiety share in the other Nohra by Panna Lal in favour of defendant 1 and, therefore, the plaintiffs were not entitled to redeem them too. Holding that the plaintiffs had proved the mortgage of only half of the other Nohra from their ancestors to defendant 1 for a Bum of RS. 221 he gave a decree for redemption to the plaintiffs of this half share in Nohra in payment of RS. 221 within six months.

11. Against judgment and the decree of the learned Munsiff, the plaintiffs went in appeal totbe Court of the District Judge, Bhilwara who has confirmed the decree of the first Court. The plaintiffs came in appeal to the former Mewar High Court and by an order of Division Bench the case was sent back to the first Court for recording evidence of Jamna Lal under Order 41, Rule 27, Civil P. C. This evidence has been recorded and file has been submitted to this Court.

12. It has been argued on behalf of the plaintiffs that the lower Courts were wrong in rejecting Exs. P-1, P 2, P-3 and Ex. P-7 which clearly proved that the three shops in dispute were first mortgagad by the suranas in favour of the firm of the plaintiffs family styled Sanwat Ram Jagannath and that the later mortgaged them with Ratlamwalas. It has also been argued that it is proved that the Nohra in dispute also belong solely to the plaintiffs and au order to accommodate defendants 2 and 3 who were their relations the plaintiff's ancestors did not raise any objection against the former mortgaging them to defendant 1. It has farther been argued that in any case defendants 2 and 3 were made a party to the suit and therefore the decree should have been given for the redemption of the whole property.

13. On behalf of the defendant-respondent 1 it has been argued that the findings of the lower Courts are entirely those of facts and cannot be disturbed in second appeal. It is contended that no mortgage-deeds or its copies have been produced. The lower Courts have rightly held that Exs. P-1, P-2, P-3 and P 7 were neither properly proved nor were of any value to prove that the mortgages relied on by the plaintiffs were in fact made or were made under the circumstances alleged by the plaintiffs. It has further been stressed the mortgages of one Nohra and 1/2 of the other Nohra were made by Chhagan Lal and Panna Lal, defendants 2 and 3 respectively. These two defendants are very distant relations of the plaintiffs according to the family tree filed by the plaintiffs; there is therefore, no presumption that the plaintiffs were members of the joint Hindu family with Panna Lal and Chhagan Lal and the fact that Shivkaran Haridass made a mortgage of one Nohra only were as Panna Lal made a mortgage of the other half and Chhagan Lal made a mortgage of the second Nohra shows that they were separate and were dealing with the property separately. Under the circumstances therefore, it would not be reasonable to presume that the plaintiffs had any right left in the property mortgaged by these two defendants alone. It has been farther urged that the mortgages having been made by Panna Lal and Chhagan Lal alone the plaintiffs were not entitled to redeem there. As regards the three shops it has been argued that there isno satisfactory evidence to prove that they were mortgaged by the plaintiff's ancestors to Ratlamwalas and there is no legal evidence whatsoever to prove that sub-mortgage of these shops was made by Ratlamwalas in favour of defendant-respondent 1. The plaintiffs had therefore no right to redeem any property excepting one half of one of the Nohras.

14. We have given our anxious care to the arguments of the learned counsel for both the parties and have also perused the record. We shall take up first the case of three shops. It has been argued on behalf of the appellants that these shops were mortgaged by Kastoor Chand Kajodi Mal Suranas of Bhilware in favour of firm Sanwat Ram Jagnuath in Sanvat 1929. To prove this the plaintiffs have filed a copy of Khata EX. P.-2 that three shops and two mohras, were mortgaged by Kastoor Chand Kajodi Mal in favour of Sah. It is, however, not clear as to who is meant by the word Sah, moreover it has not been as to in whose hand writing the said entry in the original is. The document purports to bear the signatures of Kastoor Chand put no proof of the signatures has been given. It was argued that this document should have been read in evidence under Section 90. Evidence Act, without any proof as it purports to be more that 30 years old. No request was however made to the first Court to presume this document to be correct under Section 90, Evidence Act. It was for the lower Courts to have exercised their discretion or not under Section 90, Evidence Act. They have, not exercised this discretion in favour of the plaintiffs. It is too late in the day to ask this Court to presume the document to be genuine under Section 90, Evidence Act. We there-fore, do not feel inclined to read this document into evidence under the circumstances of the case. Even if this document be read in evidence it does not throw any light on the question whether defendant l is holding this property as a mortgagee from the plaintiff's ancestors or as a sub-mortgagee from any mortgagee of theira. Similarly, EX. P.-3, which is said to be the sale-deed of the said property does not help the plaintiffs. First of all it is an unregistered document and sale-deeds of immovable property were compulsorily registrable according to the law prevailing in Mewar even in Sanvat 1958 when this sale-deed is said to have been executed. Secondly, it does not throw any light upon the real question in issue whether the property was mortgaged by the ancestors of the plaintiffs in favour of Ratlamwalas and a sub-mortgage was executed by the latter in favour of defendant 1.

15. The real question in the case is whether a usufructuary mortgage of these three shops wasmade by the plaintiffs ancestors in favour of Ratlamwalas and by the latter a sub-mortgage was made in favour of defendant 1. In order to prove this the plaintiffs placed their reliance upon Exs. P-1 and P-7. So far as Ex. P-7 is concerned it purports to be an entry from Nakal Bahi of the Ratlamwalas firm. It has not been proved as to who made that entry. A question was specifically put in cross-examination to Chhagan Lal who produced the original as to in whose hand writing the said entry was, but he replied that he did not know.

16. It has been argued that the trial Court ought to have raised a presumption about the genuineness of this entry and should have read it in evidence. First of all we do not find that any request was made on behalf of the plaintiffs that this entry ought to be taken as proved under Section 90, Evidence Act. Secondly we do not think that such a presumption would have been justified in relation to this entry. According to Section 90, Evidence Act, such a presumption can be raised if the document itself shows in whose handwriting the contents are which are being relied upon. No presumption can be made in the case of an anonymous document: vide Chandukutti Nambiar v. Rama Varma, Raja, A. I. R. (26) 1939 Mad. 326 : (1939-2 M. L. J. 593). It was held in that ruling that Section 90, does not lay down that there is any presumption regarding anonymous document the writer of which is not known. Hence where an entry in ancient document is not signed by the person who wrote it and there are no materials upon which one can say that a particular person purports to have written it except a general statement that it is kept amongst the family records as a record of the family transactions, the document cannot be taken to be properly proved by virtue of presumption under Section 90. There is also no evidence how the custody of Chhagan Lal who produced the document was proper custody. As we have said above that it is for the trial Court to raise such presumption or not and the trial Courts have raised no such presumption about this document. It is, therefore, not for us to say in second appeal that the document should have been taken into evidence. We are supported in this view by a ruling reported in Har Prasad v. Bikrimjeet Singh, 61 I.C. 959: (A. I. R. (8) 1921 Oudh 36).

17. There remains now to consider whether EX. P-1 should have been acted upon the lower Courts. This document appears to be a sort of a copy of a mortgage deed executed in favour of Ratlamwalas relating to a lot of property including 3 shops and 2 Nohras embodied in the Nakal Bahi of the plaintiff's firm. It shows that a certainproperty was mortgaged by Kajodi Mal Kishan Lal and Janki Das in favour of Ratlamwalas for certain debts outstanding against them. No attempt has, however, been made by the plain tiffs to identify that three shops mentioned there in with the three shops in suit. Moreover, the plaintiffs did not summon the alleged mortgage deed from Ratlamwalas or from defendant 1. Under these circumstances they were not entitled to put in any secondary evidence to prove the mortgage alleged by them. Where a transaction is evidenced by a deed it is incumbent on the party relying upon the transaction to prove it by the original deed. It is only when the original deed is destroyed or cannot be found or the person in possession thereof does not file it after due notice that any other evidence of its contents can be given. Under the circumstances we do not find that the lower Courts erred in not acting upon Ex. P-1. Thus there is no satisfactory evidence to prove that the three shops in dispute were usufructuary mortgaged by the plaintiffs ancestors to Ratlamwalas. So far as the question of the alleged sub-mortgage by Ratlamwalas to defendant 1 is concerned, there is no legal evidence worth the name to prove it. We therefore, find no reason to interfere with the finding of fact of the two lower Courts that it is neither proved that the three shops were mortgaged with Ratlamwalas nor that they were sub-mortgaged by the Ratlamwalas to defendant 1.

18. Coming to the two Nohras it is quite clear that the mortgage of one Nohras was made by Chhagan Lal alone and the mortgage of 1/2 of the other Nohra by Panna Lal alone. The plaintiffs or any of his ancestors were not a party to them. As has been said above it cannot be held under the circumstances of the case that the family of the plaintiffs and defendants 2 and 3 of a joint Hindu family when the two mortgages were made. Panna Lal and Chhagan Lal in their written statements alleged that they alone were the owners of the property mortgaged by them and the plaintiff or his ancestors had nothing to do with it. No doubt in the appeal, finding that it was to their advantage if the whole property was redeemed by the plaintiffs on the ground of being a joint Hindu family property of the plaintiffs and defendants 2 and 8, they put in an application that the whole of the property in, suit belonged jointly to themselves and the plaintiffs. But this was against their own pleadings and cannot override their pleadings and evidence in the case. Besides the plaintiffs set up quite different mortgages of these properties in plaint. It was alleged that one of these Nohras was mortgaged by defendants 2 and 3 in favour of defendant 1, for a sum of Rs. 400 in Samwat1963 and the other in Samwat 1959 by the plaintiffs' ancestors for a sum of Rs. 300. It has nowtranspired as a result of evidence that no suchmortgages were made. The plaintiffs' assertiontherefore the mortgage of one of these Nohraswas made by defendants 2 and 3 for Rs. 400at the connivance of the plaintiffs in order toaccommodate defendants 2 and 3 falls to theground. The plaintiff a cannot take advantage ofdifferent mortgages not set up by them : videGaurishankar v. Lala, A.I.R. (25)1938 Oudh 16.In our opinion the appeal has no force and it isdismissed with costs to the contesting respondents.